M/S- Maa Jagadhatri Road Lines Firm, Keonjhar V. Principal CIT, Cuttack

ITA 200/CTK/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 2308 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 24-06-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Assessment record; TDS; Set aside
• Section: 20

Judgement Text

P A G E 1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/ SHRI C HANDRA MOHAN GARG , JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO . 200 /CTK/201 9 ASSESSMENT YEAR : 2015 - 16 M/S. MAA JAGADHATRI ROADLINES, JAGANNATH MARKET COMPLEX, PWD ROAD, KEONJHAR. VS. PR. CIT, CUTTACK PAN/GIR NO. AAGFJ 1599 P (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI B.PANDA, SR. ADV/B.R.PANDA, AR S REVENUE BY : SHRI M.K.GAUTAM, CIT DR DATE OF HEARING : 10 / 3 / 20 2 1 DATE OF PRONOUNCEMENT : 11 / 3 /20 2 1 O R D E R PER BENCH THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE PR. CIT, CUTTACK DATED 29.3.2019 U/S.263 OF THE ACT FOR THE ASSESSMENT YEAR 2015 - 16. 2. IN THIS CASE, THE ASSESSMENT U/S.143(3) WAS COMPLETED BY THE ASSESSING OFFICER ON 30.3.2017 DETERMINING THE TOTAL ASSESSED INCOME AT RS.10,68,750/ - . LATER ON, THE PR. CIT ON PERUSAL OF ASSESSMENT RECORD THAT ON VERIFICATION OF THE DETAILS OF 26AS, THE AS SESSEE HAD EITHER RECEIVED OR ITS ACCOUNT HAD BEEN CREDITED BY COMMISSION/BROKERAGE OF RS.47,05,753/ - WITH CORRESPONDING TDS CREDIT OF RS.4,70,578/ - U/S.194H OF THE ACT FROM M/S. ITA NO.200/CTK/2019 ASSESSMENT YEAR : 2015 - 16 P A G E 2 | 5 SMC POWER GENERATION LTD., OF RS.22,10,915/ - , M/S. BHASKAR STEEL & FERRO ALLO Y LTD., OF RS.5,46,416/ - AND M/S. ACTION ISPAT & POWER PVT LTD., OF RS.19,48,422/ - . FURTHER, IT WAS SEEN FROM THE PROFIT AND LOSS ACCOUNT, THE ASSESSEE HAD DULY DISCLOSED COMMISSION INCOME IN RESPECT OF SMC POWER GENERATION LTD. AND M/S. BHASKAR STEEL & F ERRO ALLOY L:TD., BUT IN THE CASE OF M/S. ACTION ISPAT & POWER PVT LTD., COMMISSION OF RS.4,96,738/ - ONLY HAD BEEN DISCLOSED AND THE ASSESSEE HAD CLAIMED CORRESPONDING TDS CREDIT OF RS.49,675/ - . HENCE, THE ASSESSEE HAD SUPPRESSED COMMISSION INCOME TO THE EXTENT OF RS.14,51,684/ - (RS.19,48,422 RS.4,96,738). THUS, HE OBSERVED THAT THE UNDISCLOSED COMMISSION OF RS.14,51,684/ - OUGHT TO HAVE BEEN BROUGHT TO TAX WITHOUT ALLOWING ANY EXPENDITURE AS THE ASSESSEE HAD ALREADY CLAIMED THE ENTIRE EXPENSES IN THE AUDITED PROFIT AND LOSS ACCOUNT. HOWEVER, THE AO FAILED TO TAX THE ABOVE UNDISCLOSED COMMISSION INCOME IN THE ASSESSMENT ORDER. HENCE, THE ASSESSMENT ORDER IS ERRONEOUS AND P REJUDICIAL TO THE INTEREST OF THE REVENUE AS THE SAME HAS BEEN MADE WITHOUT ENQUIRY AND VERIFICATION. IN VIEW OF ABOVE, PR. CIT SET ASIDE ASSESSMENT ORDER AND DIRECT THE AO TO MODIFY HIS ASSESSMENT ORDER DATED 30.3.2017 BY MAKING ADDITION OF RS.14,51,684/ - ON ACCOUNT OF UNDISCLOSED COMMISSION INCOME. 3. LD A.R. OF THE ASSESSEE SUBMITTED THAT THE PR. CIT, IN THE IMPUGNED ORDER PASSED U/S.263 OF THE ACT, DIRECTED THE AO TO MODIFY THE ASSESSMENT ORDER DATED 30.3.2017 BY MAKING ADDITION OF RS.14,51,684/ - ON ACCOUNT OF ITA NO.200/CTK/2019 ASSESSMENT YEAR : 2015 - 16 P A G E 3 | 5 UNDISCLOSED INCOME BUT THIS INCOME COULD NOT BE OFFERED TO TAX IN THE RELEVANT ASSESSMENT YEAR 2015 - 16 AND SAME WAS OFFERED FOR TAXATION IN THE SUCCEEDING ASSESSMENT YEAR 2016 - 17. THE ASSESSEE HAS PAID TAX THEREON WITHOUT CLAIMING ANY TDS PERTA INING TO THE IMPUGNED AMOUNT OF RS.14,51,684/ - . THEREFORE, SINCE THE PR. CIT HAS DIRECTED TO MODIFY THE ASSESSMENT ORDER, THE CONTENTION OF THE ASSESSEE HAS TO BE CONSIDERED AND THE AO SHOULD BE DIRECTED TO VERIFY AS TO WHETHER THE ASSESSEE HAS OFFERED TH IS AMOUNT OF RS.14,51,684/ - FOR TAXATION IN THE RETURN OF INCOME FILED FOR SUCCEEDING ASSESSMENT YEAR 2016 - 17 AND CREDIT OF TDS MAY ALSO BE GIVEN IN THIS REGARD. 4. REPLYING TO ABOVE, LD CIT DR SUBMITTED THAT SINCE THERE WAS MISMATCH BETWEEN THE 26AS AND N O RECONCILIATION WAS FILED BY THE ASSESSEE, WHICH RESULTED INTO SUPPRESSION OF COMMISSION OF RS.14,51,684/ - . THEREFORE, THE PR. CIT WAS RIGHT IN DIRECTING THE AO TO MODIFY THE ASSESSMENT ORDER BY TREATING THE SAME UNDISCLOSED COMMISSION INCOME. LD CIT DR SUBMITTED THAT THE ONUS IS ON THE ASSESSEE TO SHOW THAT HE HAS OFFERED THE IMPUGNED AMOUNT TO TAX IN THE SUCCEEDING ASSESSMENT YEAR AS WHEN HE RECEIVED THE AMOUNT AND HAS NOT CLAIMED ANY TDS CREDIT PERTAINING THIS AMOUNT. HOWEVER, HE SUBMITTED THAT THE DE PARTMENT HAS NO SERIOUS OBJECTION IF THIS ISSUE IS RESTORED TO THE FILE OF THE AO FOR VERIFICATION AND EXAMINATION OF FACT AS TO WHETHER THE ASSESSEE HAS OFFERED THE AMOUNT ITA NO.200/CTK/2019 ASSESSMENT YEAR : 2015 - 16 P A G E 4 | 5 TO TAX IN THE SUCCEEDING ASSESSMENT YEAR 2016 - 17 AND HAS NOT CLAIMED ANY TDS CREDIT IN THIS REGARD. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD OF THE CASE. IT IS AN ADMITTED FACT THAT ON VERIFICATION OF THE DETAILS OF 26AS, THE ASSESSEE HAD RECEIVED COMMISSION/BROKERAGE OF RS.47,05,753/ - WITH CORRESPONDING TDS CREDIT OF RS.4,70,578/ - U/S.194H OF THE ACT FROM M/S. SMC POWER GENERATION LTD., OF RS.22,10,915/ - , M/S. BHASKAR STEEL & FERRO ALLOY LTD., OF RS.5,46,416/ - AND M/S. ACTION ISPAT & POWER PVT LTD., OF RS.19,48,422/ - . THE ASSESSEE HAD DULY DISCLOSED COMMISSION INCOM E IN RESPECT OF SMC POWER GENERATION LTD. AND M/S. BHASKAR STEEL & FERRO ALLOY L:TD., BUT IN THE CASE OF M/S. ACTION ISPAT & POWER PVT LTD., COMMISSION OF RS.4,96,738/ - ONLY HAD BEEN DISCLOSED AND THE ASSESSEE HAD CLAIMED CORRESPONDING TDS CREDIT OF RS.49, 675/ - . HENCE, THE PR. CIT WAS OF THE VIEW THAT THE ASSESSEE HAD SUPPRESSED COMMISSION INCOME TO THE EXTENT OF RS.14,51,684/ - (RS.19,48,422 RS.4,96,738) AND DIRECTED THE AO TO MODIFY THE ASSESSMENT ORDER BY MAKING ADDITION OF RS.14,51,684/ - . LD A.R. O F THE ASSESSEE SUBMITTED BEFORE US THAT THE SAID AMOUNT HAS BEEN RECEIVED IN THE SUCCEEDING ASSESSMENT YEAR 2016 - 16 AND OFFERED TO TAX. IF THIS IS THE CASE, THEN THE AO IS DIRECTED TO VERIFY THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2016 - 17 AND IF THE ASSESSEE HAS OFFERED THE IMPUGNED AMOUNT FOR TAXATION WITHOUT CLAIMING TDS CREDIT, THE DISALLOWANCE DESERVES ITA NO.200/CTK/2019 ASSESSMENT YEAR : 2015 - 16 P A G E 5 | 5 TO BE DELETED. THE AO IS DIRECTED ACCORDINGLY. WITH THESE DIRECTIONS, WE UPHOLD THE REVISIONARY ORDER U./S.263 OF THE ACT PASSED BY THE PR. C IT. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED WITH THE DIRECTIONS AS NOTED ABOVE. ORDER PRONOUNCED ON 11 / 3 /20 2 1 . S D/ - SD/ - ( LAXMI PRASAD SAHU ) ( CHANDRA MOHAN GARG ) ACCOUNTANT MEMBER JUDICIAL MEMBER CUTTACK; DATED 11 / 3 /20 2 1 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR . PVT. S ECRETARY ITAT, CUTTACK 1. THE APPELLANT: M/S. MAA JAGADHATRI ROADLINES, JAGANNATH MARKET COMPLEX, PWD ROAD, KEONJHAR. 2. THE RESPONDENT. PR. CIT, CUTTACK 3. THE CIT(A) - , CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//